Opinion
No. 3972.
January 24, 1939.
Frederick v. Follmer, U.S. Atty., and Joseph P. Brennan, Asst. U.S. Atty., both of Scranton, Pa., for the United States.
Robert J. Doran and Reynolds Reynolds, all of Wilkes-Barre, Pa., for Universal Credit Co.
Proceeding by the United States of America against One Ford Coupe, Model 1936, Motor No. 182,585,824, Pennsylvania License 1936, X-5534, and Five 5-Gallon Cans of Alcohol. On appeal from the taxing of costs by the clerk of the United States Court. On motion to dismiss proceeding.
Motion to review action of clerk in assessing costs dismissed.
The Defendant has filed an appeal from the taxing of costs by the Clerk of the United States Court. This appeal shall be treated as a motion to review as provided in Rule 54(d) of the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c. A motion to dismiss this proceeding was filed and is now before the court for disposition.
The costs in the above case were assessed and the opinion of the Clerk filed Tuesday, November 15, 1938. On Tuesday, November 22, 1938, the Defendant filed his motion to review the action of the Clerk. Excluding Sunday as provided in Rule 6(a), a period of six days elapsed between the time of the filing of the opinion of the Clerk and the service of the Defendant's motion. Rule 54(d) provides that the motion must be served within five days and, hence, the Defendant's motion is too late.
The Defendant has appealed to the Court to condole this delay and hear the case on its merits. It is quite true that the Courts should, and no doubt will, construe the new Rules of Civil Procedure so as to work substantial justice in all cases and avoid a strict, technical interpretation which might work a hardship on the litigants. However, such an appeal to the court is unwarranted here. The act provides a definite time limit and this time limit has been violated by the Defendant. Had there been any reasonable excuse for the delinquency of the Defendant, Rule 6(b) provides a simple method whereby the time might have been extended. As the Defendant has failed to avail himself of this provision, the Court has no alternative but to apply the strict language of the act and dismiss his motion for review.
Now, January 24, 1939, the motion to review the action of the Clerk in assessing the costs in the above case is dismissed.